Loyola of Los Angeles International Loyola of Los Angeles International

and Comparative Law Review and Comparative Law Review

Volume 27 Number 2 Article 4

3-1-2005

A Pretty Picture: The Margin of Appreciation and the Right to A Pretty Picture: The Margin of Appreciation and the Right to

Assisted Suicide Assisted Suicide

Emily Wada

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Recommended Citation Recommended Citation Emily Wada, A Pretty Picture: The Margin of Appreciation and the Right to Assisted Suicide, 27 Loy. L.A. Int'l & Comp. L. Rev. 275 (2005). Available at: https://digitalcommons.lmu.edu/ilr/vol27/iss2/4

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A Pretty Picture: the Margin ofAppreciation and the Right to Assisted

Suicide

I. INTRODUCTION

Article 2 of the Convention for the Protection of HumanRights and Fundamental Freedoms ("Convention") protects theright to life.' In April 2002, the European Court of Human Rights(ECHR) refused to interpret Article 2 of the Convention broadlyto protect the "right to self-determination in relation to issues of23

life and death." Therefore, Member States are under noobligation to decriminalize assisted suicide,4 even in the mostcompelling circumstances such as those of Diane Pretty ("Ms.Pretty"), who suffers from an incurable and debilitating disease.5

The margin of appreciation is a core principle controlling theECHR.6 The margin of appreciation is a "degree of discretion"7

afforded to Member States that is frequently invoked when thereis "difficulty in identifying uniform European conceptions of theextent of rights or restrictions."8 A lack of consensus among

1. Convention for the Protection of Human Rights and Fundamental Freedoms,Nov. 4, 1950, art. 2, 213 U.N.T.S. 222, 224. See Pretty v. United Kingdom, 2002-111 Eur.Ct. H.R. 155, 185 (setting forth few instances where the denial of this right is validated butsubject to heightened judicial review).

2. Pretty, 2002-Ill Eur. Ct. H.R. at 164, 186.3. See Council of Europe, Dates of Ratification of the European Convention on

Human Rights and Additional Protocols in General Information, athttp://www.echr.coe.int/Eng/EDocs/DatesOfRatifications.html.

4. Assisted suicide is when "[s]omeone provides an individual with the information,guidance, and means to take his or her own life with the intention that they will be usedfor this purpose." Euthanasia.com, Euthanasia Definitions, at http://www.euthanasia.com/definitions.html (last visited Jul. 25, 2005).

5. See Pretty, 2002-111 Eur. Ct. H.R. at 187.6. See HOWARD CHARLES YOUROW, THE MARGIN OF APPRECIATION DOCTRINE

IN THE DYNAMICS OF EUROPEAN HUMAN RIGHTS JURISPRUDENCE 13 (1996).7. IAIN CAMERON & MAJA KIRILOVA ERIKSSON, AN INTRODUCTION TO THE

EUROPEAN CONVENTION OF HUMAN RIGHTS 45 (1993).8. Id. at 72.

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Member States suggests to the ECHR that the matter is best left toindividual states.9 Many factors, such as differing local laws andcultures, lend support to application of the margin of appreciation,especially in the context of highly sensitive issues.0

One example of such an issue is assisted suicide, a well knownpolitical and moral debate throughout the world, which clearlyfalls within the margin of appreciation accorded to Member States.Although the ECHR did not expressly discuss the role of themargin of appreciation in its decision-making process, itsapplication to the issue raised in Pretty v. United Kingdom("Pretty") is the quintessential illustration of its proper usage.

This Note agrees with the ECHR's determination regardingMs. Pretty's claims under Article 2. In examining its decision, thisNote will apply the underlying principles of the margin ofappreciation to Pretty. Part II presents a brief background of Ms.Pretty's case. Part III outlines the basic tenets of the margin ofappreciation and applies them to the facts of Pretty, discussing theparties' respective interests, as well as a past and contemporaryworld view on assisted suicide. Part IV concludes that, while notdiscussed by the ECHR, the margin of appreciation was acontrolling factor behind the ECHR's ruling. Furthermore, Prettyrepresents an illustrative example of when the ECHR should showa wide margin of appreciation to Member States.

II. PRETFY V. UNITED KINGDOM

In 2002, Ms. Pretty, a forty-three year old English citizen, wasin the advanced stages of motor neuron disease ("MND") 11 thatcaused her to become quadriplegic." MND 3 is an untreatableprogressive neurodegenerative disease that affects voluntary

9. See id.10. See id. (commenting on the lack of uniformity in approaches across nations).11. Pretty, 2002-111 Eur. Ct. H.R. at 162.12. See id.; Clare Dyer, Diane Pretty Makes Final 'Death with Dignity' Plea,

GUARDIAN, Mar. 20, 2002, at 1, available at LEXIS, News & Business Library, ALLNWSfile.

13. See Motor Neuron Disease Association, What Is MND?, athttp://www.mndassociation.org/full-site/what/index.htm (last visited Jul. 25, 2005);National Institute of Neurological Disorders and Strokes, NINDS Motion NeuronDiseases Information Page, at http://www.ninds.nih.gov/healthand-medical/disorders/motor neurondiseases.htm (Aug. 8, 2001) (discussing general information and providinglinks regarding MND).

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14muscles and usually results in death due to respiratory failure.Significantly, the ability of MND patients to make their ownchoices is unaffected. 15

Ms. Pretty's severe physical condition made it impossible toend her suffering without the assistance of her husband. 6 Herproblem, however, was that while England's Suicide Act of 1961did not make it a crime for her to commit suicide, it imposedcriminal liability on anyone assisting her in suicide.17 Thus, Ms.Pretty's attorney wrote a letter to the Director of PublicProsecutions requesting that her husband not be prosecutedshould he help her in fulfilling her wishes."' The English judiciarynevertheless upheld the Director of Public Prosecutions' decisionto prosecute Ms. Pretty's husband if he assisted her suicide.' 9

The ECHR held that Ms. Pretty did not meet the burden ofshowing that the U.K. breached the Convention by failing topermit her husband to assist her suicide absent criminal liability. °

Ms. Pretty argued that the right to die flows directly from the rightto life guaranteed in Article 2; therefore, the state had anaffirmative duty to protect the right of self-determination with

21respect to life and death.Despite her efforts, the ECHR held that because Article 2

proscribes the intentional taking of life except in limitedcircumstances, it would be inconsistent to accept that it also

14. Pretty, 2002-11 Eur. Ct. H.R. at 162.15. Id.; see, e.g., Robert S. Olick et al., Advance Care Planning and the ALS Patients:

A Cross-Cultural Perspective on Advance Directives, 4 ANN. REV. L. & ETHICS 529-52(1996), available at http://www.bioethics.jp/lichtadvals.html.

16. Pretty, 2002-1I1 Eur. Ct. H.R. at 163.17. Suicide Act 961, 50 Eliz., c. 60, § 2 (Eng.) ("A person who aids, abets, counsels or

procures the suicide of another, or an attempt by another to commit suicide, shall be liableon conviction on indictment to imprisonment for a term not exceeding fourteen years.").A limited defense is nevertheless available for those giving proper treatment to terminallyill persons for the purpose of lessening pain when that treatment has the effect ofshortening life. Jonathan Montgomery, Power Over Death: The Final Sting, in DEATHRITES: LAW AND ETHICS AT THE END OF LIFE 52 n. 25 (Robert Lee & Derek Morganeds., 1994).

18. Pretty, 2002-III Eur. Ct. H.R. at 163.19. Id. Ms. Pretty's denial was upheld by three separate courts. See The Queen v. Dir.

of Pub. Prosecutions, EWHC Admin. 788 (Q.B. Div'l Ct. 2001); Regina (Pretty) v. Dir. ofPub. Prosecutions, [20021 1 A.C. 800 (H.L. 2001).

20. Pretty, 2002-1I1 Eur. Ct. H.R. at 167-68.21. Id. at 164-65.

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ensures the right to procure another's help in committing suicide.22

The ECHR also explained the ostensible inconsistency in theSuicide Act of 1961: "[T]he sanctity of life entails its inviolabilityby an outsider. Subject to exceptions like self-defense, human lifeis inviolate even if the person in question has consented to itsviolation. That is why although suicide is not a crime, assistingsomeone to commit suicide is." 2

III. PRETTY V. UNITED KINGDOM: THE QUINTESSENTIAL

ILLUSTRATION OF THE APPLICATION OF THE MARGIN OF

APPRECIATION

Pretty is a unique case concerning the right to assisted suicideof a mentally competent, yet terminally ill and physicallyincompetent person.2 In fact, Pretty is the first time the ECHRconfronted the issue of whether Article 2 of the Conventionguaranteed a right to die. While the ECHR justified its holdingthrough statutory interpretation of Article 2,2 distinguishing caselaw,26 and basic principles of English law, 7 the sheer novelty andcomplexity of the issue alone may have been enough to predict thecase's outcome.

The ECHR did not explicitly discuss or apply the margin ofappreciation in Pretty with respect to Ms. Pretty's claims under

28Article 2. Yet Pretty is an excellent illustration of when and whythe ECHR should make the most of the doctrine.

A. The Margin of Appreciation: A Theory of Deference

The margin of appreciation is a self-imposed 29 mechanism ofjudicial restraint. Conceptually, it is the "elbow room" given to

22. Id. at 165-67 (recalling "that Article 2 of the Convention may also imply in certainwell-defined circumstances a positive obligation on the authorities to take preventiveoperational measures to protect an individual whose life is at risk from the criminal acts ofanother individual"). Osman v. United Kingdom, 1998-VIII Eur. Ct. H.R. 3124, 3159.

23. Airedale N.H.S. Trust v. Bland, 1993 A.C. 789, 831 (H.L. 1992).24. See generally Pretty, 2002-11I Eur. Ct. H.R. at 162.25. Id. at 165.26. Id. at 167.27. Id.28. See generally id.29. YOUROW, supra note 6, at 196.30. See CAMERON, supra note 7, at 72.

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contracting states" as the "formal standard for the determinationof deference to state discretion 3 2 in the enactment or enforcementof local laws." Accordingly, the margin may be "wide" or"narrow" - a wide margin results in more discretion given to astate,34 and a narrow margin results in less discretion.35 Thisdistinction is important because the "width" of the margin maygreatly affect the level of protection required by Member States.

The determination of the width of the margin of appreciationdepends on the totality of the circumstances. 37 That is, it dependson the "fundamental nature" of the asserted right in comparison tothe "objectivity and importance" of the state practice in question,and the degree of convergence among Member States.38

While "the presence of a consensus does not of itself meanthat there is a [narrow] margin of appreciation,.., the absence ofa consensus is probably a decisive factor in finding that there is a[wide] margin of appreciation. '"" In fact, the ECHR often takes

31. YOUROW, supra note 6, at 13.32. Id. at 195-96.33. The margin of appreciation is historically rooted in cases relating to public

emergencies where the Court was reluctant to rule against a state for their policydecisions. IAIN CAMERON, NATIONAL SECURITY AND THE EUROPEAN CONVENTION ONHUMAN RIGHTS 28 (2000). In those cases, the ECHR frequently found itself unversed inthe particular situation. See MARK W. JANIS ET AL., EUROPEAN HUMAN RIGHTS LAW:TEXT AND MATERIALS 146 (2d ed. 2000). There were also several analytical approachesavailable to the Court. KAREN REID, A PRACTITIONER'S GUIDE TO THE EUROPEANCONVENTION ON HUMAN RIGHTS 32 (1998). Accordingly, the ECHR would apply themargin of appreciation so that the Convention could compensate for the differenttraditions, ethics, and observances in each of the Contracting States. Id.

34. For example, the ECHR gives highly contentious issues of national security awide margin of appreciation. REID, supra note 33, at 33.

35. See id.36. See Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective

Supranational Adjudication, 107 YALE L.J. 273, 317 (1997).37. See CAMERON, supra note 33, at 29.38. YOUROW, supra note 6, at 13. The issue itself may also factor into the degree of

deference accorded to Member States. REID, supra note 33, at 33. For example, there is awell-defined history of deference towards controversial issues such as transsexualism. See,e.g., Rees Judgment, 106 Eur. Ct. H.R. (ser. A) 6, 17 (1987); Cossey Judgment, 184 Eur.Ct. H.R. (ser. A) 5, 16 (1990); B. v. France, 232 Eur. Ct. H.R. 33, 49 (1993); Sheffield v.United Kingdom, 1998-V Eur. Ct. H.R. 2014, 2028.

39. CAMERON, supra note 7, at 72-73 (emphasis added). In fact, the ECHRcommonly cites a lack of convergence in a highly contentious issue as a ground forapplying a wide margin of appreciation. REID, supra note 33, at 33. See Heifer, supra note36, at 317; YOUROW, supra note 6, at 193.

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special note of the degree of convergence among contractingstates.4n

Thus, the margin of appreciation is clearly an importantdoctrine controlling the ECHR and the obligations of MemberStates. The difficulty, however, is the doctrine's indeterminateapplicability.41 "This is because neither the [ECHR] [n]or the[European Commission of Human Rights] proved or attenipted toprovide a definition and, more pertinently, because theConvention organs have treated the doctrine functionally,developing it on an ad hoc basis. 42

B. Applying the Margin to Pretty

1. Balancing the Interests at Stake

a. Ms. Pretty's interest: the right to live a dignified life

The interest of Ms. Pretty is obvious-the right of life-buthow does one define living? Is life merely survival or does itincorporate some degree of dignity? Ms. Pretty's proponents arguethat if a person's entire life consists of physical, mental, andpsychological suffering, then that is living death itse lf. 43

The question then becomes whether the state should beallowed to deny a person the ability to live his or her life withdignity. Article 2 should recognize the "right to self-determinationin relation to issues of life and death" and thereby impose anaffirmative obligation upon Member States to protect both the

40. See CAMERON, supra note 33, at 26; JANIS, supra note 33, at 147; REID, supranote 33, at 33; see, e.g., L & V v. Aus., 2003-1 Eur. Ct. H.R. 31, 43 (noting the existence of"an ever growing European consensus to apply equal ages of consent for [sexual]relations"); Goodwin v. U.K., 2002-VI Eur. Ct. H.R. 3, 20 (recognizing "an unmistakabletrend in the [Miember States" with respect to transsexual legal rights); Coster v. U.K., 33Eur. H.R. Rep. 479, 506 (2001) (observing the "emerging international consensus" withinthe Council of Europe regarding the minority needs); Tyrer v. U.K., 26 Eur. Ct. H.R. (ser.A) 4, 15-16 (1978) (noting that there were influential developing "commonly acceptedstandards in the penal policy of the [M]ember States").

41. See YOUROW, supra note 6, at 14.42. Id. at 14 n. 23 (citing ARANGIO-RuIZ, ET AL., INTERNATIONAL LAW AT THE

TIME OF ITS CODIFICATION 192 (1987)).43. See Peter Alldridge, 'Who Wants to Live Forever?', in DEATH RITES: LAW AND

ETHICS AT THE END OF LIFE 11 (Robert Lee & Derek Morgan eds., 1994) (discussing thefear of becoming the "undead").

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right to life and the right to die.44 Refusing individuals this right isto devalue life45 and to render them completely powerless, denyingthem of their "fundamental human right. 46

b. State's interest: workability

On the other hand, the interests of the state are equally clear.As Kathryn Willington, a health and social care policy officer forHelp the Aged,47 said, "The prohibition on assisted suicide isdesigned to protect some of the most vulnerable members ofsociety .... Any change in the law would run the risk of abuse andwould fundamentally change the doctor/patient relationship., 4

Focusing on the patient's concerns, several problemsimmediately come to mind. A terminally ill patient may feelpressured to participate in such a program to save his or her familysubstantial emotional and financial expenses. 49 Also, the mereexistence of a legal assisted suicide program could feasibly fosterhasty decision making. For example, one study revealed thatapproximately sixty-three percent of the patients using Oregon'sassisted suicide law were prompted "by a concern that they were aburden on family, friends and caregivers." 50

Another large issue lies in the administration of the program.Undoubtedly, the U.K. would impose restrictions similar to thoseof other countries that currently allow some form of legalized

44. Pretty, 2002-111 Eur. Ct. H.R. at 164.45. See, e.g., Bruce Schimmel, A Dignified Death, PHILA. CITY PAPER, Jan. 10-17,

2002, available at http://www.citypaper.net/articles/011002/sl.loose.shtml.46. See Jo Revill, Swiss to Stop Entry of 'Mercy Death' Britons, OBSERVER, Jan. 26,

2003, available at http:/lsociety.guardian.co.uk/healthstoryl0,7890,883108,00.htm (quotingChris Davies, Liberal Democratic Member in the European Parliament for the New WestRegion of the U.K.).

47. David Batty, Government Urged to Drop Notion of 'Undeserving' Poor (Oct. 15,2003), at http://society.guardian.co.uk. Help the Aged is an organization committed tocampaigning and researching geriatric issues. Help the Aged, Viewpoint, athttp://www.helptheaged.org.uk (last visited Jul. 25, 2005).

48. Help the Aged, Lords Debate 'Right to Die' Bill, UK NEWS (June 6, 2003),available at http://www.helptheaged.org.uk/CampaignsNews/_default.htm.

49. See, e.g., How Physician Assisted Suicide Could Affect People with Disabilities, athttp://www.euthanasia.com/disabledman.html (last visited Jul. 25, 2005) (detailing thepersonal reflections of a quadriplegic man who characterizes the assisted suicide as a"nightmare" for terminal patients, and "hope[s] the entire [physician assisted suicide]concept dies a swift death...").

50. Society for the Protection of Unborn Children, Euthanasia and Women (June2003), at http://www.spuc.org.uk/documents/papers/euthanasiaandwomen.pdf.

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assisted suicide." What will always remain, however, is theproblem of ensuring that the patient is the person choosing toutilize the program rather than the doctor. This problem, betterknown as the "futile-care theory, 5 2 is one that the Dutch, whohave legalized some form of assisted suicide, know all too well.53

In addition, the U.K. would reasonably worry about peoplewho are not terminally ill taking advantage of such laws.54

Unwilling physicians also factor into the mix of concerns. In asurvey conducted just before Lord Joffe's introduction of thePatient (Assisted Dying) Bill to the House of Lords,approximately seventy-five percent of physicians polled said theywould not use the law if it passed.55

Altogether, it is difficult to reach a conclusive position whileattempting to balance state interests with the interests of Ms.Pretty and those similarly situated to her. If the ECHR held infavor of Ms. Pretty, over forty of the forty-five Member States

51. E.g., Euthanasia Law, Termination of Life on Request and Assisted Suicide(Review Procedures) Act, at http://www.nvve.nl (last visited Jul. 25, 2005), for currentassisted suicide law in the Netherlands.

52. See Wesley J. Smith, International Task Force on Euthanasia and AssistedSuicide, Doctor Knows Best... .But It'll Be Too Late for You, If He's Wrong, 17 UPDATE(2003), http://www..internationaltaskforce.org/iua28.htm (last visited Jul. 25, 2005) (statingthe real problem is that most people do not become aware of such policies until it is toolate); see also How Physician Assisted Suicide Could Affect People with Disabilities, athttp://www.euthanasia.com/disabledman.html (last visited Jul. 25, 2005) ("With health careprofessionals being forced by insurance companies/bureaucracies to balance cutting costsagainst what's in the best interest of their patient, add in legalized [physician assistedsuicide] and the possibility of being offered a cheap end to your life as opposed to anastronomically expensive long term plan of treat is all to [sic] real.").

53. See International Task Force on Euthanasia and Assisted Suicide, ReportsIndicate Dutch Doctors Breaking New Euthanasia/Assisted-Suicide Law, 17 UPDATE(2003), http://www.internationaltaskforce.org/iua28.htm (last visited Jul. 25, 2005) (givingone example of a Dutch doctor who said his "patient was too sick to request euthanasiaherself, so he increased her morphine" and "knowingly broke the law" without evenconsulting another doctor).

54. See, e.g., International Task Force on Euthanasia and Assisted Suicide, SwissGroup Responsible for Deaths of Non-Terminally Ill Couple and Others, 17 UPDATE(2003), http://www.internationaltaskforce.org (last visited Jul. 25, 2005) ("Dr. PhilipSutorius, a general practitioner who, in 1998, assisted the suicide of 86-year-old ex-senatorEdward Brongersma. Brongersma was not physically ill or in pain. He claimed he wassimply 'tired of life' and his aging ....").

55. International Task Force on Euthanasia and Assisted Suicide, Most U.K. DoctorsOppose Assisted Suicide, 17 UPDATE (2003), http://www.internationaltaskforce.org/iua28.htm (last visited Jul. 25, 2005).

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would be forced to immediately address the valid concernsdiscussed above in order to come up with a workable program.

As important as it is to respect the right asserted by Ms.Pretty, the risk of needless deaths of those who would misuse suchprograms is too great a responsibility for society. The "objectivityand importance" of the state's interest is too pronounced-oneindividual's "fundamental right" to a dignified life and a dignifieddeath should not outweigh the risk of many lives. The balance ofinterests weighs in favor of the U.K., and thus, the margin ofappreciation at this stage of the analysis must be wide.

2. The Issue Itself: What Is the Degree of Consensus?

a. The historical disregard for the right to die

The Hippocratic Oath, one of the oldest codes of ethicsgoverning physicians, dates back to approximately 400 B.C. Itstates, "I will neither give a deadly drug to anybody if asked for it,nor will I make a suggestion to this effect. 5 6 Catholicism laterformally condemned suicide and Christendom codified this view inthe fifth century." Those who committed suicide were evenrefused Christian burials.58 Further, while the debate over suicidebecame less rigid during the seventeenth and eighteenthcenturies, 9 there nevertheless remains a long Western traditionexpressing disapproval of assisted suicide.6°

Actually, legally condoned assisted suicide is a recentinnovation in Western society. Germany implemented a regime ofassisted suicide around 193961 which bore some resemblance towhat modern advocates preach.62 However, even though German

56. N.D.A. KEMP, 'MERCIFUL RELEASE': THE HISTORY OF THE BRITISH

EUTHANASIA MOVEMENT 4 (2002).

57. Id. at 6.58. Id.59. See id. at 6-8.60. Washington v. Glucksberg, 521 U.S. 702, 710-12 (1997).61. See History of Euthanasia, Euthanasia.com, at http://www.euthanasia.com (last

visited Jul. 25, 2005).62. Molly Hammett Kronberg, The Nazi Precedent: Hitler's Euthanasia Program

More Like Today's Than You Might Imagine, in EXECUTIVE INTELLIGENCE REVIEW,SPECIAL REPORT: HOW TO STOP THE RESURGENCE OF NAZI EUTHANASIA TODAY 129,130 (Nancy B. Spannaus et al. eds., 1988). At that time in Germany, assisted suicide, ormore specifically, physician-assisted suicide, was seen as a "merciful" privilege for thosewithout a minimal "quality of life." Id. at 132-33.

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leaders made sure that the doctors who performed euthanasia didso in the most humane and least painful manner,63 those doctorswere still tried and hung for "crime[s] against humanity" by aninternational tribunal.64 Australia's Northern Territory alsolegalized euthanasia in 1996, but then quickly overturned the lawin 1997.65 Within that one year, only four people made use of theshort lived Australian law, some with great difficulty because ofreluctant physicians deterred by the possibility of homicideconvictions.

b. The current international status

There is an argument that the U.K. distorted the currentsituation in other European countries by arguing that TheNetherlands was the only country to legalize assisted suicide.67 Inrebuttal, a member of the Voluntary Euthanasia Society assertedthat while the U.K. has the most stringent laws, most European

68countries do not criminalize assisted suicide, and some even havespecial laws for terminally ill patients.69

While few places in the world allow assisted suicide,70 Oregon,Switzerland, Belgium, and The Netherlands are the only places in

63. Id. at 140. This "privilege" was unavailable to those of Jewish descent. Id. at 132.64. Id. at 129, 134.65. Euthanasia Laws Act, 1997, sched. 1 (Austl.) ("For the avoidance of doubt, the

enactment of the Legislative Assembly called the Rights of the Terminally Ill Act 1995 hasno force or effect as a law of the Territory, except as regards the lawfulness or validity ofanything done in accordance therewith prior to the commencement of this Act."); Historyof Euthanasia, Euthanasia.com, at http://www.euthanasia.com/historyeuthanasia.html (lastvisited Jul. 25, 2005).

66. See Euthanasia and Assisted Suicide in Australia, The World Federation of Rightto Die Societies, at http://www.worldrtd.net/faqs/factsheets/?id=164 (last visited Jul. 25,2005).

67. Mike Wendling, Assisted Suicide Case Goes to Highest European Court (Mar. 19,2002), available at European Ctr for L. & Justice, http://www.eclj.org/news/euro-news_020319 assistedsuicide.asp.

68. For example, assisted suicide is not legal in Switzerland, but the practice isregarded as humane. Widow Defends Assisted Suicide Trip, BBC NEWS (Feb. 10, 2003),available at http://news.bbc.co.ukI1/hi/health/2736473.stm.

69. Wendling, supra note 67, at http://www.eclj.org/news/euro-news_020319_assistedsuicide.asp.

70. For example, Columbia's judiciary upheld voluntary medical euthanasia while thelegislature remains silent on the issue. Derek Humphrey, Assisted Suicide Laws Aroundthe World (last updated Sept. 18, 2003), available at Euthanasia Research & GuidanceOrg., http://www.assistedsuicide.org/suicide-laws.htm.

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the world that have given the official nod of approval as of today.7'Advocates of assisted suicide in countries or states without similarstatutes, such as the U.K., are unsuccessfully fighting for their ownlaws.72 In the meantime, many terminally ill proponents of assistedsuicide leave their own country and travel to where they can endtheir lives on their own terms.73

c. The Council of Europe at a glance

The Council of Europe, comprised of forty-five MemberStates,74 conducted an international survey in 2002 to survey thelaws and practices regarding human rights and their relation to theterminally ill.7 6 Thirty-four Central Asian and European states, theUnited States, and Russia responded.77

71. E.g., Termination of Life on Request and Assisted Suicide (Review Procedures)Act, available at Right to Die-NL, http://www.nvve.nl/english/info/euthlawenglish.htm(last visited Jul. 25, 2005). Oregon only permits physician assisted suicide; Switzerlandpermits physician and non-physician assisted suicide; Belgium permits euthanasia but doesnot define it; and, the Netherlands permit voluntary euthanasia and physician assistedsuicide. Humphrey, supra note 70.

72. From 1936 through 2003, there have been eight attempts to legalize some form ofassisted suicide in the U.K. Id. E.g., Patient (Assisted Dying) Bill [HL] (Eng.), available athttp://www.publications.parliament.uk/ (last visited Jul. 25, 2005) (debating the secondreading of Lord Joffe's Patient (Assisted Dying) Bill within the House of Lords); see alsoVES Auckland, New Zealand: Death with Dignity Bill Lost in Narrow Vote (July 31, 2003),available at http://www.nvve.nl/english/info/news.htm. Attempts to legalize euthanasia inLuxembourg failed by a single vote. Humphrey, supra note 70.

73. Jeevan Vasagar, Suicide Reform Plea to Stop Britons Going Abroad to Die,GUARDIAN, Apr. 16, 2003, available at http://www.guardian.co.uk/guardianpolitics/story/0,3605,937594,00.html. See, e.g., Widow Defends Assisted Suicide Trip, supra note 68,at http://news.bbc.co.uk/l/hi/health/ 2736473.stm; Jo Revill, Swiss to Stop Entry of 'MercyDeath' Britons, GUARDIAN, Jan. 26, 2003, available at http://society.guardian.co.uk/health/story/0,7890,883108,00.html (discussing the rapid growth of "suicide tourism" inSwitzerland and the possibility of making it illegal).

74. See Council of Europe, The Council of Europe's Member States, athttp://www.coe.int/T/e/com/about-coe/member-states/default.asp (last visited Jul. 25,2005).

75. Short Report, Law and Practice Short Report: Law and Practices Relating toEuthanasia and Assisted Suicide in 34 Countries of the Council of Europe and the USA, 22MED. & L. 197 (2003) [hereinafter Law and Practices Relating to Euthanasia].

76. Id.77. Humphrey, supra note 70.

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When asked whether the country legally allowed euthanasia 78

Belgium was the only country to answer in the affirmative. 9

Moreover, the survey revealed that assisted suicide was legallypermitted only in Estonia and Switzerland. 8° In overwhelmingcontrast, twenty-five countries stated that euthanasia wasimpermissible at law s' and twenty-three countries shared the sameview regarding assisted suicide.82

While some advocates of assisted suicide point out that onlysix countries admitted to enforcing laws that specifically prohibitassisted suicide, 83 it is important to note that many countriespunish assisters using the regular penal laws concerninghomicide. For example, under Scottish law, consented killings areconsidered to be murder and otherwise assisting another in suicideis also criminally punishable conduct.85 Similarly, Norway andSweden charge assisters as accessories to murder.86 In Luxembourgand France, assisting suicide is sometimes treated as a criminalfailure to aid a person in danger. 87

On the other hand, England, Wales, Canada, Hungary,Ireland, Italy, and Russia directly prohibit assisted suicide by law.8

In Finland, one who notifies the authorities of one's act ofassistance may go unpunished.89 Uruguay provides a ratherextreme illustration where, if a court finds that a person killedanother out of compassion, it may decide not to punish that personat all.9°

78. Euthanasia is defined as "the intentional killing by act or omission of a dependenthuman being for his or her alleged benefit." See Humphrey, supra note 70 for relatedvocabulary.

79. Law and Practices Relating to Euthanasia, supra note 75, at 198.80. Id.81. Nine countries did not give a specific answer. Id.82. Id.83. See id.84. Law and Practices Relating to Euthanasia, supra note 75, at 198.85. Humphrey, supra note 70.86. Id.87. Law and Practices Relating to Euthanasia, supra note 75, at 198. But see id.

("[I]nciters or accessories to a freely responsible suicide are.., not criminally liable.")(emphasis added).

88. Humphrey, supra note 70.89. Id.90. Article 27 of the Penal Code states that "judges are authorized to forego

punishment of a person whose previous life has been honorable where he commits ahomicide motivated by compassion, induced by repeated requests of the victim." Id.

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Considering the facts above, it would be difficult to say that amajority of Member States view assisted suicide favorably.Although there is a strong and deeply rooted western consensusagainst the legality of assisted suicide,91 each country obviouslydeals with the issue differently, or chooses not to address it at all.9,There are three notable exceptions, however, within the Council ofEurope: Switzerland, Belgium, and The Netherlands, all of whichhave laws allowing some form of assisted suicide.93 In addition,Germany experimented with such a program in the past,94 andthere are significant efforts in a number of states to legalizeassisted suicide.95

The resulting picture is, quite honestly, a mess. There is noclear agreement among the Member States. Taking this with thebalance of interests in favor of the U.K. should signal a widemargin of appreciation on the issue of assisted suicide.96 Thus,although the ECHR did not discuss the width of the margin inPretty, its application to this case is illustrative, and this Noteprovides further support for the ECHR's determination in Pretty.

IV. CONCLUSION

The ECHR is a unique tribunal that faces many issues thatare not traditionally handled in an international forum.97 Itfunctions to interpret and apply the Convention in the "mostintimate aspects of the relations between the citizen and theState."9' Additionally, because the subject matter before the courtpertains to human rights, the ECHR must tread carefully so as toavoid stepping on the toes of its numerous and diverse members.99

The margin of appreciation allows for, and sometimes requires, theECHR, as in Ms. Pretty's case, to fulfill its duty in both respects.

91. Glucksberg, 521 U.S. at 710.92. See infra III.B(2)(b).93. Humphrey, supra note 70.94. Kronberg, supra note 62, at 129.95. Humphrey, supra note 70.96. See CAMERON, supra note 7, at 72-73.97. See J. G. MERRILLS, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE

EUROPEAN COURT OF HUMAN RIGHTS 9 (2d ed. 1993).98. Id.99. After all, "[i]t is not reasonable to expect any court, least of all an international

court, to blaze the trail in promoting human rights." CAMERON, supra note 33, at 26.

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288 Loy. L.A. Int'l & Comp. L. Rev. [Vol. 27:275

In viewing the totality of the circumstances, Pretty is a goodexample of when the ECHR should show Member States a widemargin of appreciation.' Attempting to balance the interest ofMs. Pretty against the interest of the U.K. proved to be a difficulttask. From a collectivist point of view, serious concerns over theadministration and use of assisted suicide laws are far too real andmarked.'0 ' As such, to interpret Article 2 as requiring MemberStates to safeguard the lives of those within its jurisdiction,'12 andsimultaneously imposing a positive obligation to legalize assistedsuicide in compliance with such a duty, would be a seeminglyimpossible task.

Furthermore, the right to die has been and continues to be thesubject of flourishing social, moral, and political debate andliterature.' 3 There is no consensus on the issue.' 4 Some countriesexpressly forbid assisted suicide through special legislation, othercountries punish assisters using regular penal laws, and yet othercountries may cushion sentences under special circumstances or donot convict at all.'0 5 And, on the furthest end of the spectrum, thereare even some states that legally condone assisted suicide.'' 6

Collectively, these facts point towards a wide margin of

100. See Mark Tushnet, New Forms of Judicial Review and the Persistence of Rightsand Democracy-Based Worries, 38 WAKE FOREST L. REV. 813, 837 n. 87 (2003).

101. See, e.g., Stephen R. Katz, Doctor Assisted Suicide - a Bad Oxymoron and a BadIdea, CONN. POST, Apr. 27, 1998, available at http://pages.prodigy.com/DOCTORINFORM/suicide.htm.

102. Pretty, 2002-II Eur. Ct. H.R. at 165.103. See, e.g., KUMAR AMARASEKARA & MIRKO BAGARIC, EUTHANASIA,

MORALITY AND THE LAW 19 (David A. Schultz ed., 2002); see also DANIEL HILLYARD &JOHN DOMBRINK, DYING RIGHT: THE DEATH WITH DIGNITY MOVEMENT (2001); TheRight to Die?, NI Global Issues for Learners of English, available athttp://www2.gol.com/users/bobkeim/right-to die/r2diecont.html (last visited Jul. 25, 2005);Right to Die, Public Agenda, available at http://www.publicagenda.orglissues/frontdoor.cfm?issue-type=right2die (last visited Jul. 25, 2005).

104. Just recently, however, the Council of Europe approved of a report on euthanasia,and in a draft resolution adopted on September 5, 2003, Member States were asked toconsider whether legislation to legalize euthanasia should be enacted. Council of Europe,Assembly Committee Calls on European States to Consider Decriminalizing Euthanasia, athttp://www.coe.int/NewsSearchfInternetNewsByMonth.asp?lmLangue=l. (last visited Jul.25, 2005).

105. For example, in some Norwegian cases "where consent was given and the reasonscompassionate,. . . courts [have] pass[ed] lighter sentences." Humphrey, supra note 70.

106. Euthanasia Law, Termination of Life on Request and Assisted Suicide (ReviewProcedures) Act, at http://www.nvve.nl/english/info/euthlawenglish.htm (last visited Jul.25, 2005).

Assisted Suicide

appreciation towards Member States, and thus provide additionalsupport for the ruling against Ms. Pretty.

Notwithstanding the court's grounds for dismissing Ms.Pretty's argument on the right to die, Pretty is the quintessentialexample of the proper application of the margin of appreciation. Itis in cases such as Pretty that the ECHR should defer to theindividual judgments of its Member States.

Emily Wada*

. J.D. Candidate, May 2005, Loyola Law School, Los Angeles; B.S. Cell &Developmental Biology, University of California at Santa Barbara, 2001. This Note isdedicated to my grandmothers Janice Show, Yukiko Wada, and Sachiko Wada;grandfathers Jesse Show and Morito Walter Wada; and, to my parents for giving me themotivation to do my best. I wish to thank all the Loyola of Los Angeles International &Comparative Law Review editors and staff for their production work on this Note.

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